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Second Appeal No. 93 of 1980, decided on 6th February, 1985.

---S . 9--Civil Procedure Code (V of 1908), O. I, r. 10--Evidence Act (I of 1872), Ss. 101 & 102--Suit for possession--Controversy over number and location of plot in dispute--Determination of--Burden of proof- Controversy over number and actual location of plot in dispute being in existence--Burden to prove actual location and number of plot and alleged encroachment over it by defendants was on plaintiff--Authority allotting plot could only point out as to which plot was allotted to plaintiff--Plaintiff neither made said Authorities party in suit nor led any evidence on that point--Plaintiff failed to discharge burden of proof--Suit, held, rightly dismissed by Courts blows.

A.R. Mirza for Appellant.

Muhammad Ali Shaikh for Respondents.

Date of hearing: 9th January, 1985.

This second appeal under section 100, C.P.C. has been filed against the concurrent findings of Civil Judge, Badin and District Judge,. Badin.

2. The facts are that appellant, Malik Abdul Hafeez filed a Suit No. 2 of 1976 for possession and permanent injunction in the Court of Civil Judge, Badin. He purchased a plot from the Settlement Authorities in the sum of Ra.2,100 in a public auction on 22-5-1960 and full price was paid and a P.T.D. No. 1572, dated 30-11-1966 was issued in his favour. At the time of auction the plot was in possession of one Moulvi Rehman. The plaintiff gave a notice to him under section 30 of Displaced Persons (Compensation and Rehabilitation) Act in 1962 and after that Moulvi Abdul Rehman handed over the vacant possession of the plot. Due to financial difficulties the plaintiff could not raise constructions and allowed one Muhammad son of Ramzan Khaskhaili to reside and look after the plot, who promised to vacate the plot whenever required by the plaintiff. In the year 1970, plaintiff /appellant wanted to raise construction on the plot and got plan approved from the Town Committee, Badin, and again in the year 1971 he got another plan approved from the Cantonment Board of Badin and asked Muhammad s/o Ramzan Khaskhaili to vacate the plot, who vacated the same in the year 1974. It is mentioned in the plaintiff that after few days of taking the possession of the plot the defendants, who are now respondents, forcibly took the possession of the plot during the night time. The plaintiff, therefore, filed suit for possession. The evidence was recorded by the Civil Judge and F.C.M. Badin and framed as many as 11 issues, and finally he decreed his suit by a Judgment dated 31-7-1976. The respondents went in appeal and the learned District Judge, Badin, remanded the case with directions that parties be given full opportunities to lead their evidence. After remanding the case, the parties led their evidence and closed their sides. The learned Civil Judge, Badin, returned the plaint under Order I, rule 10, C.P.C. for filing case in competent Court of law. According to him, the Settlement Authorities were necessary party

in the matter. The appellant went in appeal against that order and the learned District Judge set aside that order and remanded back to lower Court with directions to give decision on the merits and finally learned Civil Judge dismissed the suit. Being aggrieved the appellant filed appeal before the District Judge, who by an order, dated 22-10-1979, dismissed the appeal. The appellant then filed this second appeal.

3. Both the Courts below have gone through the evidence and by a detailed judgments, dismissed the suit on the ground that it is not known in which plot the respondents are residing and area of plot is also not known. The number of plot where respondents are is different.

4. I have heard Mr. Abdul Rashid Mirza, Advocate, for the appellant and Mr. Muhammad Ali Shaikh, Advocate for the respondents.

5. Mr. Mirza has contended that the learned Civil Judge has gone beyond his jurisdiction and has given findings on the title of plot though suit was for possession. He has stated that title is only to be determined by the proper authority.

6. Mr. Muhammad Ali Shaikh's contention is that appellant has not examined any person from Cantonment Board, Badin so as to determine the actual location of the plot of the appellant.

7. I have perused both the judgments in which all the factual position has been fully discussed. The appellant has not examined any officer from the Settlement Department or Local Municipal Authority, se as to prove whether the plot in dispute is P.54 of which appellant claims to be owner. Burden lies upon the appellant to prove his title and to prove that respondents have encroached on Plot No. P.54. There are two contradictory versions about the number and measurement of the plot. The plot number is stated to be 475/2 whereas the plaintiff claims to be owner of Plot No. P.54. The Settlement Authorities could only point out as to which plot was allotted to the plaintiff. No evidence has been led on this point, therefore this disputed question which A could be determined by the proper authorities and not by the Civil Court. I think the suit has properly been dismissed by well reasoned and detailed judgment in which all the issues and evidence brought on record by both the parties have been considered at length. There is no irregularity or illegality in both the judgments and I do not find any reason to interfere with the concurrent findings of the Courts below. Accordingly, appeal is dismissed.

H. B. T.

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